R. Sreeja v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 17TH DAY OF OCTOBER 2019 / 25TH ASWINA, 1941** ## **WP(C).No.2616 OF 2012(B)** ## **PETITIONER/S:** **R. SREEJA, AGED 31 YEARS, W/O. JAYAKUMAR, A.B. VILASOM HIGHER SECONDARY SCHOOL, MUHAMMA, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.V.A.MUHAMMED SRI. K.E. HAMSA** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM - 695 014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA - 688 001.** - **4 THE DISTRICT EDUCATIONAL OFFICER, CHERTHALA, ALAPPUZHA DISTRICT - 688 524.** - **5 THE MANAGER, A.B.VILASOM HIGHER SECONDARY SCHOOL, MUHAMMA, ALAPPUZHA DISTRICT - 688 525.** **BY ADVS.** - **R1 TO R4 SRI. JESTIN MATHEW, GOVERNMENT PLEADER R5 - SRI.K.P.JUSTINE (KARIPAT)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-10-2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C) No.2616 of 2012** **2** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P1 order passed by the person in charge of the Deputy Director of Education, Alappuzha, declining approval of the petitioner from 01.06.2009 as High School Assistant (H.S.A) (Hindi) and for other related and consequential reliefs. Brief material facts for the disposal of the writ petition are as follows: 2. A retirement vacancy of H.S.A (Hindi) was kept vacant in the A.B. Vilasom Higher Secondary School, Muhamma, Alappuzha District from 2002-2003 onwards. No protected H.S.A (Hindi) has joined duty in the school. The Deputy Director of Education, Alappuzha as per Ext.P5 order dated 05.02.2010 informed that there is no protected H.S.A (Hindi) in the District, and directed the Manager to post a protected teacher in any other subjects. According to the petitioner, in that vacancy, another teacher viz., one Sindhu was appointed as H.S.A (Hindi). A protected H.S.A (Maths) has joined duty on 09.09.2010. It is the case of the petitioner that, she was promoted in another vacancy from 01.06.2009, since the petitioner is a Rule 43 claimant under Chapter XIV-A K.E.R. There is no justification for limiting **W.P.(C) No.2616 of 2012** **3** the approval of the petitioner from 09.09.2010 onwards. This contention is put forth by the petitioner on the basis that at the time of promotion of the petitioner as H.S.A (Hindi) on 01.06.2009, another vacancy of H.S.A (Hindi) was kept vacant from 2002-2003 for providing to a protected hand. Therefore, the case projected by the petitioner is that, there is no justification in limiting the approval of the petitioner from 09.09.2010, instead of 01.06.2009. 3. The 1[st] respondent has filed a detailed counter affidavit, disputing the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, a vacancy of H.S.A (Hindi) was reserved in the school from the date of upgradation from 1982 onwards and protected teachers had been working in the school up to 2002-2003. One of the main reasons for the rejection of appointment of teachers in A.B. Vilasom Higher Secondary School was the non-absorption of protected teacher in the school. The Manager did not take any initiative to make such appointment up to 31.05.2009. It was only on 01.06.2009, the Manager made a request before the Deputy Director of Education, Alappuzha to deploy a protected teacher in the school. There were two other **W.P.(C) No.2616 of 2012** **4** vacancies of H.S.A in the school at the time of promotion of the petitioner. The Manager ought to have taken steps to set apart vacancy in any other subject available for the absorption of protected teachers. The Government Orders, (Rt.)No.178/02 dated 28.06.2002 and G.O.(P)No.46/06 did not permit approval of appointments on the grounds mentioned in the writ petition. The Government as per Circular No.1679/10/G.Edn. dated 19.01.2010 ordered that DPI and Educational Officers should not issue clarification on Government Orders/directions without the concurrence of Government in writing, citing the example of a clarification given by the DPI in regard to G.O. dated 28.06.2002 that the restriction in the above Government Order was not applicable to Rule 51A/43 claimants of Chapter XIV-A. So, there is justification in limiting the appointment approval from 09.09.2010 in view of Circular No.38929/J1/2009/G. Edn. 4. It is further submitted that, there were protected teachers in the Alappuzha revenue District for deployment and the Manager ought to have set apart a vacancy in any other subject for which protected teachers were available for absorption in the school. There were other vacancies in the school at the time of **W.P.(C) No.2616 of 2012** **5** appointment of the petitioner, and as per Circular No.1679/2010/G. Edn. dated 19.01.2010, it was ordered that the restriction in G.O.(P)No.178/02 dated 28.06.2012 and 46/06 dated 01.02.2006 were applicable to Rule 51A and 43 claimants. 5. The sum and substance of the contention put forth is that, after the school was upgraded, protected teachers were working up to 2002, and after the said period, a post was vacant and the Manager had not taken steps for absorption of the protected teachers. There were vacancies in other subjects and the Manager ought to have changed the vacancy for the absorption of a protected teacher in the school. It is also submitted that, simply reserving a vacant post in a particular category of post for long span of years is against the spirit of the Government Orders specified above, and therefore, the approval was granted in terms of the Government Circular dated 19.11.2009 specified above, which is intended for redeployment of maximum number of protected teachers in view of economy and social justice. 6. A statement is also filed for and on behalf of the 3[rd] respondent in similar lines. **W.P.(C) No.2616 of 2012 6** 7. I have heard learned counsel for the petitioner, learned Government Pleader and the learned counsel appearing for the 5[th] respondent, and perused the pleadings and the documents on record. 8. The basic contention advanced by learned counsel for the petitioner is that, petitioner was promoted in a vacancy from 01.06.2009 and since the petitioner is a Rule 43 claimant under Chapter XIV-A, K.E.R., petitioner is entitled to get the same from that date onwards, and therefore, the approval ought to have been effected from that date. It is also the contention of the petitioner that, since petitioner is entitled to get the benefit of Rule 43 claim under Chapter XIV-A of K.E.R., it cannot be taken away by Ext.P9 Circular, and hence the Circular itself is bad and it is liable to be struck down. It is the further case of the petitioner that, at the time of promotion as H.S.A (Hindi) on 01.06.2009, another vacancy of H.S.A (Hindi) was kept vacant from 2002-2003 for providing to a protected hand, and therefore, there is no justification for limiting the approval of promotion to the petitioner as H.S.A (Hindi). 9. On the other hand, learned Government Pleader relied upon Ext.P9 Circular, and submitted that, the **7** ## **W.P.(C) No.2616 of 2012** Manager was duty bound to appoint the protected hands and the protected hand was appointed by the Manager only with effect from 09.09.2010 and the petitioner is entitled to get approval only from that date. The said contention is advanced, since, according to learned Government Pleader, the Deputy Director of Education was bound by Ext.P9 Circular issued by the Government dated 19.11.2009, wherein, it is stipulated that, if any school which was started between 1979 and 1990 or upgraded during that period, such schools are duty bound to appoint at least one teacher from the protected category. If any of those schools have not appointed any protected teachers, the first arising vacancy shall be provided to the protected teacher, as per the list prepared for the said purpose, and any appointments made without following the Circular shall not be approved, and further, if any appointments are made without following the stipulations in the Circular, the approval shall be done only with effect from the date of joining of a protected teacher in that school. 10. However, Learned counsel for the petitioner in that regard has invited my attention to the judgment of this Court in ' _**Nadeera v. State of Kerala**_ ' [2011 (3) **W.P.(C) No.2616 of 2012** **8** KLT 790], which was dealing with the said question, and held as follows in paragraphs 15 to 20: “ _**15** . I find nothing therein which prevents approval of appointment or which postpones the approval till a protected hand is appointed by the Manager. The said Government Order restate the obligation of the Manager to appoint a protected hand. But the time factor is not mentioned therein. In many cases, availability of protected hands may be delayed and nonavailability of protected hands in certain posts may be there. Therefore, to compel a Manager to postpone the appointment of a qualified teacher even after the post is sanctioned by the staff fixation order will go against the scheme of the Act and Rules itself. When the staff fixation order permits appointment of required number of staff, the Manager will have to make the appointment in existing vacancies and exercise of the power of the Manager in such cases cannot be said to be against the scheme of the Act. In fact the learned counsel for the petitioner relied upon the decision of the Division Bench of this Court in Manager, M.M.H.S. v. Deputy Director (1994 (1) KLT 321) taking the view that actually it is the duty of the Manager to fill up all the posts in accordance with the orders of the educational authorities fixing the staff strength._ _**16** . Therefore, it can be see that when the Manager exercised his power to make appointment in terms of staff fixation order of a qualified teacher, the postponement of the approval on the plea that the same can be done only from the date of appointment of the protected hand may not be justified. In this context a later Government Order of the year 2009 is also worth-mentioning. The same is G.O.No.38929/09/G.Edn. dated 19.11.2009 which clarifies G.O.No.46/06 /G.Edn. dated 1.2.2006. It is insisted therein that in the schools which have opened between 1979 and 1990 or which have been upgraded, if for any reason a protected hand is not appointed, then at least one protected teacher may be appointed in any of the existing/arising vacancies and the appointments otherwise made shall not be approved. It is further clarified therein that if any appointments have been made in any of the schools like wise,_ **W.P.(C) No.2616 of 2012** **9** _approval can be effected from the date of appointment of a protected hand._ _**17** . This also confirms the view that at least till the said Government Order was issued on 19.11.2009, there was no restriction to grant approval on the plea that such approval will be granted only from the date of appointment of a protected hand. In fact, going by R.7 of Chap.XIVA of K.E.R., “as soon as a teacher is appointed in a subject, the Manager shall immediately issue an appointment order to the teacher (in Form 27) and the appointment shall be effective from the date on which the teacher is admitted to duty, provided the appointment is duly approved.” As far as grant approval is concerned, normally, it should conform to the existence of vacancy and the sanction of post as per the staff fixation order and the eligibility of the teacher for appointment by fulfilling the qualification. Once these conditions are satisfied, unless there is any other legal bar for granting approval, there cannot be a refusal to grant approval normally._ _**18** . The learned Government Pleader relied upon R.1 of Chap.XIV-A K.E.R. in this context to submit that all the rules contained therein will have to be followed while filling up the vacancy, which includes the scheme for providing a protected hand. The plea advanced by the learned Government Pleader is that going by the same, “whenever vacancy occurs, the Manager shall follow the directions issued by the Government from time to time, for ascertaining the availability of qualified hand (and for filling up vacancy).” Actually, the same indicates the provisions for filling up the vacancies in terms of the Rules and orders fixing qualification, age, etc., and not a situation like this, which is evident from the opening sentence therein that “Managers of private schools shall appoint only candidates who possess the prescribed qualification”._ _**19** . Herein, therefore, the scenario that is evident is that the Manager has already appointed a protected hand in terms of R.6(viii) of Chap.V of KER. There is no enabling provision which allows the Educational Officer to postpone the approval till a protected hand is appointed till the recent Government Order dated 19.11.2009 was issued which can only be prospective. Evidently_ **W.P.(C) No.2616 of 2012** **10** _there was no such prohibition also at the time of appointment of the petitioners, even though the learned Government Pleader vehemently contended that the statutory obligation cannot be allowed to be postponed._ _**20** . It is in that context that the procedure for communicating the list of protected teachers forwarded under Exhibit P10 Government Order and later orders comes into play and going by the decisions of this Court in Exhibits P12 to P15 judgments, if it is also absent, there cannot be any bar for approval of appointment. There is no contention by respondents that at the time of filling up the vacancies such a list was forwarded to the Manager. Apart from that the appointment of a teacher in a school only recognises the obligation of the Manager to conduct the school in terms of the Statute, requirements of the students and the staff fixation. Primary concern is the welfare of the students and therefore unless a qualified hand is appointed, the Manager will not be able to conduct the school in a proper manner also. This does not mean that he can wriggle out the obligation regarding appointment of a protected hand; but the system should not be stretched to the extent of denying approval of appointment of a qualified teacher, that too in vacancies like those herein, which arose due to retirement of qualified teachers. Apart from that, as rightly pointed out by the learned counsel for the petitioner, herein there is no additional financial burden to the Government since no other teachers were paid salary also. In that view of the matter the petitioners are entitled to succeed in the Writ Petition._ 11. It is explicit and evident that the learned Judge has considered the similar question in ' _**Nadeera'**_ ( _supra_ ), and the findings are rendered after appreciation of the relevant rules under Chapter XIV-A K.E.R _vis-a-vis_ the Circular in question, and I am in respectful agreement with the proposition laid down therein, especially it is a wholesome answer to the **W.P.(C) No.2616 of 2012** **11** issue on hand. After evaluating the rival submissions made across the Bar, I am of the considered opinion that, it is an admitted fact that petitioner was promoted as H.S.A (Hindi) on and with effect from 01.06.2009. There is no case for the Government that there was no vacancy available in the school at that point of time, and further that, there is duplication in the matter of payment of salary to any other person. In the judgment in ' _**Nadeera**_ ' ( _supra_ ), this Court had occasion to consider the question elaborately as to whether the rigour of Ext.P1 Circular can be made to the detriment of a teacher who was appointed from an anterior date so as to comply with the stipulations contained under Ext.P9 Circular and entitled for appointment only from the date of appointment of the protected teacher. 12. It was also held therein that there is no rhyme or reason in approving the appointment from the date of appointment of a protected teacher. It is also clear that, petitioner is a Rule 43 claimant of Chapter XIV-A K.E.R and petitioner was entitled to get appointed in the school as per the statutory protection, and merely because a protected teacher was appointed at a later point of time, the approach of the **W.P.(C) No.2616 of 2012** **12** Government that the petitioner is also entitled to get approval of the appointment only with effect from the date of appointment of a protected teacher has no reasonable nexus to the object sought to be achieved. Moreover, it is not a fair and reasonable classification done. 13. Therefore, taking into account the factual and legal circumstances and the principles of law evolved in ' _**Nadeera**_ ' ( _supra_ ), I am of the considered opinion that, petitioner is entitled to succeed in this writ petition, and therefore, there will be a direction to the respondents to approve the promotion of the petitioner on and with effect from 01.06.2009, at the earliest, and at any rate, within a month from the date of receipt of a copy of this judgment, and if any financial benefits are to be secured by the petitioner on that account, the same shall be done without any further delay. The writ petition is allowed accordingly. ## **Sd/-** ## **SHAJI P.CHALY** ## **JUDGE** **St/-18.10.2019** **W.P.(C) No.2616 of 2012** **13** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER NO.B1-5606/11/K.DIS. DATED 20/10/2011 OF THE DEPUTY DIRECTOR.** **EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 01/06/2008 AND THE APPROVAL THEREOF. EXHIBIT P3 TRUE COPY OF THE ORDER NO.A4/5017/09 OF THE DEPUTY DIRECTOR OF EDUCATION DATED 18/09/2009. EXHIBIT P4 TRUE COPY OF THE ORDER NO.1/HSA(HINDI)/2009-2010 DATED 06/10/2010 OF THE MANAGER. EXHIBIT P5 TRUE COPY OF THE ORDER NO.A4/5017/09 OF THE DEPUTY DIRECTOR OF EDUCATION DATED 05/02/2010 ALONG WITH RELEVANT PAGE OF THE LIST. EXHIBIT P6 TRUE COPY OF THE ORDER OF THE MANAGER DATED 28/06/2010. EXHIBIT P7 TRUE COPY OF THE ORDER NO. A4/9625/10 OF THE DEPUTY DIRECTOR OF EDUCATION DATED 20/07/2010 ALONG WITH LIST. EXHIBIT P8 TRUE COPY OF THE ORDER OF THE MANAGER DATED 27/07/2010. EXHIBIT P9 TRUE COPY OF THE CIRCULAR NO.38929/JI/2009/G.EDN. DATED 19/11/2009 OF THE GOVERNMENT. EXHIBIT P10 TRUE COPY OF THE DECISION REPORTED IN 2011(4) K.L.T. 365 DATED 29/09/2011. EXHIBIT P11 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.15525/2010-M.** ## **RESPONDENTS' EXHIBITS: NIL**